The opinion of the court was delivered by: SIRICA
On December 10, 1976, the Court of Appeals remanded the record in this case to this Court for the "limited purpose of commencing the development of a plan of distribution [of copies of the tapes introduced into evidence and played to the jury in United States v. Mitchell, Cr. No. 74-110], in accord with [the Court of Appeals' earlier opinion of October 26, 1976, 551 f.2d 1252 (1976)." This order is intended to begin that process.
The first thing that must be done is to set a procedure for developing the plan. The Court has tentatively decided to proceed in the following manner. First, it will request that the parties in this case who are seeking copies of the tapes submit a proposed plan or plans for distribution. The Court will then allow comment on the proposed plan or plans by those parties in this case who wish to do so. Thereafter, the general public will be given an opportunity to comment on a plan or plans that might be acceptable. When all the comments from the public have been received and considered, the Court will then decide on the final plan for distribution.
The Court is aware that this possible procedure is somewhat vague and may not be completely satisfactory. The Court, therefore, would like to have comments on it from the parties. In particular, if comment by the public is in fact appropriate, the Court would like to have suggestions on how they might best be notified and given an opportunity to comment. For example, the Court would like to know whether notice through the Federal Register or through press release or through both would be appropriate.
How can the Court assure that copies of high quality will be produced relatively quickly, at a reasonable cost, and in sufficient quantity to satisfy the likely demand for them? How can the Court assure that no unfair competitive advantage is conferred through the copying process? More specifically, who should be entrusted with the task of producing the copies? What form should the copies take -- phonograph record or tape?
One possible solution to at least some of these problems might be to ask the archivist of the United States to undertake this task. It does appear that 31 U.S.C. § 686 (1970) permits the Court and the archivist to enter into an agreement to do this, and it does appear, from the Court's preliminary inquiry, that the archivist has the capability to perform the work. There may be a better way that the Court is not aware of, but the parties should specifically consider this possibility and, if unsatisfied with it, give reasons against it.
B. Distribution of Copies
How can the Court assure that the copies will be distributed fairly, promptly, and at reasonable cost? How can the Court assure that no unfair competitive advantage will be conferred through the distribution process? More specifically, who should be chosen to distribute the copies? How can the Court assure that each person who wishes to purchase a copy will be able to do so at approximately the same time? How shall interested persons be notified that copies of the tapes are available? What should be the price set for purchase of copies?
The Court suggests that perhaps the archivist might undertake this task also. The parties should ...